In November 2017, in the midst of parliamentary debate about how to legislate marriage equality after the historic yes vote, the Turnbull government asked former attorney general Philip Ruddock to lead a panel to review the issue of religious freedom. The review has recommended the Commonwealth amend the federal Sex Discrimination Act to provide “that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status.” In response to the debate which has followed, on Monday 4 February 2019, The Sydney Institute held a discussion on the issue of religious freedom and the Sex Discrimination Act. Dr Greg Walsh form the School of Law at Notre Dame University, Sydney, and Associate Professor Amy Maguire from the University of Newcastle presented their different views on what it all should or could involve.
RELIGIOUS SCHOOLS AND THE SEX DISCRIMINATION ACT
The Indigenous peoples of a country call for recognition of their ongoing sovereignty and a re-evaluation of their relationship to the state, yet many members of the non-Indigenous population see this call as incompatible with their expression of national self-determination. A person of faith covers their face as an expression of their religious beliefs, but the state requires the removal of the cover in order to verify the person’s identity. A local council maintains a public facility named after an historical figure, however people of colour in the community object because the facility’s publicly-displayed name contains a racial epithet.
In such examples, we see the potential for tension between human rights claims. Before returning to the subject raised by Dr Walsh, I’d like to discuss the broader notion of human rights in the balance. Human rights are expressed, in international law, as universal, inalienable and indivisible.There is no hierarchy of rights to provide clear and easy resolution when tension arises between them. Inevitably, in a modern and diverse society, individuals and communities will differ on which rights standards they regard as most essential for their wellbeing. In such cases, rights may necessarily be constrained.
There is no hierarchy of rights to provide clear and easy resolution when tension arises between them. Inevitably, in a modern and diverse society, individuals and communities will differ on which rights standards they regard as most essential for their wellbeing.
This process of balancing rights claims is not untethered under international law, or the law in some Australian jurisdictions. The Siracusa Principles justify the limitation of a fundamental human right where the limitation is necessary, it pursues a legitimate aim and the limitation is proportionate to the aim. These principles of limitation are incorporated into the human rights laws of several countries, in Victoria and the ACT, and by the Commonwealth Parliamentary Joint Committee on Human Rights. That Committee adds the requirement that a measure that limits a human right should be prescribed by law.
Canadian Professor Errol Mendes has written that decision-makers faced with rights in conflict are challenged to find “the contextual equilibrium between the two sets of rights that can do justice to both but not constitute such an intrusion on either right that the fundamental values underlying” the rights “are seriously impaired”. Further, Dr Patricia Hughes recommends characterising such circumstances as “rights in tension”, with the goal of achieving reconciliation of rights.
Dr Patricia Hughes recommends characterising such circumstances as “rights in tension”, with the goal of achieving reconciliation of rights.
We witnessed several attempts to reconcile rights during the debate over marriage reform. Some may recall that Liberal MP James Paterson proposed a bill to legalise same-sex marriage while providing very wide-ranging protections for religious freedom. The bill sought to protect specific beliefs, including that the “normative state of gender is binary”. People holding such beliefs would have been protected by a new criminal offence of “victimisation”. These proposals risked privileging religious freedom in a way that would have created a hierarchy of human rights protection. They did not win parliamentary support.
Australia’s human rights culture
This essential search for balance or reconciliation of rights claims is, unfortunately, particularly challenging in Australia due to our lack of a genuine human rights culture or discourse.
Australia is the only democratic country in the world to lack a constitutional or statutory bill or charter of rights. At the national level, anti-discrimination law is the main source of what might be called human rights law. These provisions do not remotely meet Australia’s international legal obligations, willingly consented to, to incorporate the full range of universal human rights in domestic law and policy. This state of affairs undermines the assertion of the Australian government, in making its bid for UN Human Rights Council membership, that human rights are “national values deeply embedded in Australian society”. Importantly, this absence also denies Australian society of the language and precedent that should underpin the challenging but essential processes of balancing rights claims.
Importantly, this absence also denies Australian society of the language and precedent that should underpin the challenging but essential processes of balancing rights claims.
In this area, we can – and should – work towards the construction of a true human rights culture, through the development of a national law protecting the full range of human rights to which Australia is genuinely committed as an international citizen. Many other countries have grappled with the dilemmas posed by tensions between religious freedom and freedom from discrimination. The construction of a domestic human rights framework will better enable Australia to draw on their experiences and evaluate what is suitable for our social life.
Religious schools and discrimination
In the debate regarding the extent to which religious schools ought to be permitted to discriminate against students or teachers on the basis of their sexual orientation or gender identity, various rights are in tension. There is a right to freedom of thought, conscience and religion, which is unconstrained in its private sense (of an individual’s belief or non-belief) but subject to potential limitation in terms of its public manifestations. There is also the fundamental pursuit of equality of all people before the law and the parallel prohibition on discrimination which would undermine that pursuit of equality. There are rights to privacy and to family life. Concern must also be given to the body of human rights law concerned with the rights of the child, particularly the “best interests of the child” standard.
Concern must also be given to the body of human rights law concerned with the rights of the child, particularly the “best interests of the child” standard.
These considerations must sit alongside each other in their social context. Any attempt to establish a hierarchy between different human rights undermines their essential goal of protecting the “equal and inalienable rights of all members of the human family”. In this context it is particularly important to acknowledge that the privileging of rights essential to a liberal worldview, such as the right to freedom of thought, conscience and religion, above rights to equality and freedom from discrimination risks particular harm to some of the most vulnerable individuals and communities in our society.
I acknowledge the significance of religious adherence to people of faith and believe that Australian law ought to protect the right to freedom of thought, conscience and religion. That could be attended to, in part, through the passage of a federal statute to outlaw discrimination on the basis of religion and also a prohibition on religious vilification.
I acknowledge the significance of religious adherence to people of faith and believe that Australian law ought to protect the right to freedom of thought, conscience and religion.
Human rights law also respects the right of parents to ensure the religious education of their children in accordance with their own convictions. With more than one in three Australian children enrolled in religious schools, and considerable government funding being directed towards that sector, it is clear that Australian society is invested in the furtherance of this right. However, in like legal systems including New Zealand, Ireland and the UK, the legal exemptions to discrimination law for religious schools are significantly more limited. In those countries, the freedom of religion of religious schools is attended to only by exemptions permitting the exclusion of children of a different sex from single-sex schools and the refusal of admission to students who do not adhere to the faith of a school community.
In its response to the Ruddock Review, the Australian government acknowledged the complexity of protecting school children from discrimination while maintaining the capacity of religious schools to operate consistently with their ethos. I accept the legitimacy of both of these objectives, while arguing that it is reasonable and necessary to limit religious freedom in the context of religious schools to protect the best interests of children and their rights to an education appropriate to their needs.
I support the removal of exemptions which permit direct discrimination against students in religious schools, for example the expulsion of a student because they are gay. I accept that few, if any, religious schools wish to exercise such a power, but the likelihood that a power may be exercised is not the key question when we consider whether it should exist in law at all. Any LGBT child in Australia should know that the law does not permit them to be denied the education of their family’s choice because of a feature of their personhood.
I support the removal of exemptions which permit direct discrimination against students in religious schools, for example the expulsion of a student because they are gay.
I do not support exemptions which would permit unreasonable indirect discrimination against students in religious schools, for example where a school may seek to prevent students from forming clubs or discussion groups that are perceived as challenging the school’s ethos. In such a case, LGBT students are not being singled out, but the effect of the school’s policy may be indirectly discriminatory towards them because it is more likely that a support group for LGBT students will highlight the incongruity between their school’s ethos and their identities. The existing “reasonableness” defence to indirect discrimination is sufficient to allow schools to operate within their ethos.
I note the concerns of religious organisations that teachers in religious schools ought to protect and maintain their school’s ethos. On this point, I can see justification in an argument that schools should have a capacity to require that teachers engaged in religious instruction be willing to adhere to the school’s ethos in that instruction. Such a position could be characterised as a “genuine occupational requirement”. This approach is consistent with the approach of the European Court of Human Rights. I would distinguish such a case from what I regard as an unreasonable capacity for religious schools to refuse to hire or to terminate the employment of any teacher, staff member or contractor on the basis of their sexual orientation. Such a capacity is not consistent with human rights jurisprudence.
On this point, I can see justification in an argument that schools should have a capacity to require that teachers engaged in religious instruction be willing to adhere to the school’s ethos in that instruction.
To explain these positions, I turn to my own life experience. As someone raised in the Catholic tradition and educated at Catholic schools, I am well aware of that faith tradition’s teachings on, for example, sexuality, contraception, euthanasia and assisted reproductive technologies. I was made aware of those teachings through religious instruction in church services and at school. I am also aware that many people who identify as Catholic would, regardless of church dogma, have differing views on these matters. Indeed, I was educated alongside children who were openly gay and bisexual. In my observation, then, it is possible both to identify as an adherent of a faith community and diverge from that tradition’s official teachings on a given matter. In removing exemptions that permit discrimination against LGBT students in religious schools, Australian law would not remove the capacity for those schools to communicate through religious instruction the ethos of a given faith.
As a human rights lawyer and a parent, I am comfortable with the proposition that the right to freedom of religion can be constrained in these ways for religious schools and still be meaningful for religious adherents. To explain my comfort, again, I turn to my own experience. As late as the 1960s, it was a widely-held view that a woman’s place, once she was married and a mother, was in the home and not also in the workplace. My own mother, at that time, was a young and enthusiastic primary school teacher in country Victoria. At the time of her first pregnancy, she was compelled by her school to resign her position. Today, though, neither our law nor our social expectations permit the exclusion of pregnant women and mothers from the workplace.
Today, the Australian community is challenged to consider the extent to which our law should permit discrimination in education against children on the basis of their sexual orientation or gender identity. This question is distinct from a consideration of whether religious adherents ought to have the right to maintain religious schools that convey religious instruction to their children, or to have those schools receive public funding as they currently do. Rather, it is to accept that we are constantly growing in our understanding of the diversity of human life and experience. That diversity challenges established social norms and calls for expanding understandings of what equality requires.
Today, the Australian community is challenged to consider the extent to which our law should permit discrimination in education against children on the basis of their sexual orientation or gender identity.
My views on this issue are also founded in a sense that we ought to weigh the relative harms risked or inflicted by capacities to discriminate when we consider if a limitation on a human right is proportionate. To return to the idea of balance or reconciliation between rights in tension, I note the view of the Australian Law Reform Commission that “a structured proportionality analysis involves considering whether… – on balance – the public interest pursued by [a given] law outweighs the harm done to the individual right” that law seeks to limit. In the context of discrimination against students in religious schools on the basis of their sexual orientation or gender identity, a range of potential harms may be advanced.
For example, in a recent article published in The Spectator, Dr Walsh noted the experience of Archbishop Porteous of Tasmania, who in Dr Walsh’s phrasing was “subjected to a vilification complaint for publishing a pamphlet advocating traditional marriage”. I note that the vilification complaint was withdrawn, so the alleged harm is the experience of being complained against. This experience could be characterised both as a harm and as an uncomfortable but important interaction demonstrating the capacity of an open, democratic society to test the appropriate balance of rights in tension. The Archbishop in fact acknowledged this before a Parliamentary Committee last year when he said that the conciliation process was “valuable at that level to have that personal interaction with the complainant and … I think I understood the other position more clearly as a result of it. I think that was good”.
I note that the vilification complaint was withdrawn, so the alleged harm is the experience of being complained against.
Meanwhile, many advocates for the removal of exemptions from discrimination law in this area raise the prospect of other types of harm imposed on LGBT children. Homosexuality, bisexuality, transgenderism and gender diversity are not choices, but rather natural expressions of human diversity. Nor are these characteristics properly characterised as mental health problems to be resolved. Yet it is well established that the experience of discrimination has detrimental impacts on the mental health of LGBT people, and that these members of our society are disproportionately represented in statistics of self-harm and suicide. LGBT young people in religious schools are more likely than their non-religious peers to experience social exclusion, bullying, homophobic language and attacks, and to feel negatively about their same-sex attraction and report suicidal ideation.
LGBT young people in religious schools are more likely than their non-religious peers to experience social exclusion, bullying, homophobic language and attacks, and to feel negatively about their same-sex attraction and report suicidal ideation.
In this context, we must consider the appropriate degree of intervention by the state. I argue that governments must prioritise the best interests of children in their regulation of schools. While the freedom of religion dictates that schools be permitted to operate with a religious ethos, the primary responsibility of those schools remains the safety and wellbeing of their pupils. Children are entitled to special protection because they are more vulnerable than adults and lack equal capacity to assert their rights. Weighing rights in the balance, I argue that the religious freedom of schools must be somewhat constrained in law, because the best interests of a child cannot be advanced through discrimination based on their sexual orientation or gender identity.
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 Amy Maguire, ‘As Australians say ‘yes’ to marriage equality, the legal stoush over human rights takes centre stage’, The Conversation, 15 November 2017: https://theconversation.com/as-australians-say-yes-to-marriage-equality-the-legal-stoush-over-human-rights-takes-centre-stage-87337
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 Greg Walsh, ‘Both Labor and the Coalition threaten religious schools’, The Spectator, 26 November 2018: https://www.spectator.com.au/2018/11/both-labor-and-the-coalition-threaten-religious-schools/
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